First, consider the brilliant litigation career of Ruth Bader Ginsburg.
In Frontiero v. Richardson (1973), she persuaded the Supreme Court that it was unconstitutional for the military to provide living quarters and medical benefits for the families of servicemen, but not for the families of servicewomen.
In Kahn v. Shevin (1974), she challenged a Florida law that granted widows an annual $500 property tax exemption, while denying the same exemption to widowers. She ran aground on Justice Douglas’ opinion that “there can be no dispute that the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man. Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs.” Justices William Brennan, Thurgood Marshall, and Byron White dissented. Eleven years later, one conservative appeals court judge questioned whether the majority opinion retained any vitality.
In Edwards v. Healey, she had successfully challenged Louisiana’s practice of allowing women to opt out of jury duty. It was unfair to her clients, who included women who were parties to litigation in Louisiana, to tip the jury pool toward men who could not opt out. Louisiana changed its practices, and in 1975 the U.S. Supreme Court dismissed the case as moot. But four years later, in Duren v. Missouri, she successfully challenged the opt-out rule in a criminal prosecution.
In Weinberger v. Wiesenfeld (1975), she successfully challenged a Social Security law that granted survivors of a man both widow’s and children’s benefits, while the survivors of a woman only received children’s benefits. She also successfully challenged Social Security discrimination against a widower in Califano v. Goldfarb (1977). That law required a widower to prove that he had actually relied on his deceased wife for support, while a widow would not have to prove that she had relied on her deceased husband for support.
The cases attorney Ginsburg selected, to pursue all the way to the Supreme Court, reflected her prudent belief that the high court is more likely to decide a case than a cause. To this day, the Supreme Court has not agreed that sex stands alongside race as a suspect classification. But it places a heavy burden on any unit of government that wants to discriminate on the basis of sex. This law developed incrementally, reflecting what the New York Times called Ginsburg’s “slow and steady” pursuit of justice.
Now, consider Ruth Bader Ginsburg as an associate justice of that court.
She came to the Supreme Court with a deep skepticism about the all-time feminist landmark decision, Roe v. Wade. Her sharp litigation instincts told her it was too great a leap forward in one case. Quoted in the Times, she remarked that, “Doctrinal limbs too swiftly shaped may prove unstable.” In that regard she was more prescient than distant observers, including me, who thought that the oceanic disturbance caused by Roe might settle down into calm waters. A half century later, that obviously has not happened.
Claiming the benefit of hindsight, the reason becomes clear. The balance between majoritarian democracy and individual rights is not a mere matter of litigation strategy. When the court struck down not just one highly restrictive Texas statute, but literally every abortion law in the nation, “a decent respect to the opinions of [people]” required that they should “declare the causes” which impelled them to it. The general principle is stated at the very beginning of our Declaration of Independence. That Declaration did not have four concurring opinions and a dissent.
By viewing Roe as a mere matter of litigation strategy, Justice Ginsberg – and many of the rest of us – failed to comprehend the great skepticism and bitterness it engendered among the disenfranchised opponents of elective abortions. We also failed to appreciate the logical departure it represented. As Justice Potter Stewart indicated in his concurrence, the decision demonstrated that “the doctrine of substantive due process” was not dead.
What is “substantive due process?” To a semanticist, it is an oxymoron. There are substantive issues and there are process issues, and the first word cannot modify the second. To legal historians, it recalls the era between the Civil War and the New Deal in which the Supreme Court struck down child labor laws and other legislation intended to provide some relief for ordinary citizens, during the Gilded Age and the robber baron era. To me, no scholar but one who has taken his own share of cases to appellate courts, it means that the judges can just make it up.
Conservative politicians and judges quickly realized (again) that two sides could play the game of constitutional make-believe, and the Supreme Court became the political football it is today. The conservative collateral damage from Roe will take years to repair; and it may take decades for the court to become the politically neutral umpire it was designed to be.
It is unfortunate that as an associate justice, Ginsburg did not act upon her litigator’s instincts and look for ways to minimize the tension that Roe produced. It is even more unfortunate that she seemed unfazed by the institutional damage cascading right before her eyes. Outrage over the decision made Ronald Reagan a serious presidential candidate and ushered in decades of conservative political dominance. Support for the Equal Rights Amendment melted like a Minnesota icicle in March. To their everlasting credit, in 2000 two conservative appointees crossed the ideological divide to oppose the hijacking of a presidential vote count. Ginsburg and another liberal appointee joined them in dissent and could have entered the pantheon as guarantors of democracy. But 13 and 15 years later the temptation to overturn another 40-plus state and federal laws, this time on the subject of marriage, proved overpowering. Enter Donald Trump, stage center.
(Just this time, I can claim a little credit for foresight. I predicted, right here in MinnPost, that the 2013 same sex marriage decisions would be a “2-for” for Justice Anthony Kennedy – implementing his policy preference on the marriage issue while also triggering a conservative backlash. His political reward came in welcoming two of his former law clerks, Neil Gorsuch and Brett Kavanaugh, to the Court.)
It appears that the life of Roe will have a bitter end. Like the Elliott Gould character in the 1991 movie “Bugsy,” it would been better off liquidated by its friends instead of its enemies. And Ruth Bader Ginsburg’s legacy will be best represented by what she did before she was appointed to the Supreme Court.
But perhaps a long-hypothermic tradition of liberalism will again show its political muscle.
Kurt M. Anderson, of Minneapolis, is an attorney with 43 years experience, particularly in mental health, agricultural, and mental health law. He has previously been active in DFL and Independence Party politics.
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